Some Ohio law enforcement officers continue to demonstrate ignorance about Open Carry

12:05am Monday, July 07, 2008

"Our government... teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." - Louis D. Brandeis

"We the People grant law enforcement their limited power and authority, not vice versa." - Ken Hanson, Esq.

By Chad D. Baus

Just over two weeks ago, Buckeye Firearms Assocation was contacted by Ohio concealed handgun license (CHL)-holder Bryan Ledford with an ominous message:

Another law-abiding Ohioan who was exercising his legal and Constitutional right to openly carry a handgun had been apprehended by police officers with guns drawn.

Mr. Ledford had already published his account on an Internet discussion forum at OpenCarry.org, and Ohioans For Concealed Carry, of which he is a member, set about to obtain an apology on his behalf.

Mr. Ledford's detainment by the Willowick, OH police department was far from a first. Indeed, just a few short months ago the Columbus Dispatch published an article detailing plight of Philip Turner, who suffered a similar experience. Similar incidents have been document by this website and others.

What should have brought Mr. Ledford's experience to the attention of every police chief (and news director) in Ohio was the fact that he had made a tape of the entire incident, and had caught these ignorant, abusive police officers red-handed.

On the tape, which is nearly ten minutes in length, a police sergeant can be heard repeatedly berating Ledford with profanity, threatening him with baseless charges and misinforming him about the illegality of openly carrying a firearm.

As we have in the past, Buckeye Firearms Association decided to give the responsible parties (primarily Chief Michael T. Lazor of the Willowick Police Department) a chance to make things right. While an apology from the police department is certainly called for, it is clear that Mr. Ledford may well also have claims that deserve the attention of a judge (false arrest and interfering with his civil rights to name two).

More than two weeks have passed, and Ohioans For Concealed Carry is now reporting their efforts to rectify the situation have resulted in a written reprimand for the abusive police sergeant, and in new training procedures for Willowick police officers.

Buckeye Firearms Association regularly receives inquiries on the subject of Open Carry in Ohio. There is obviously much confusion among the media, law enforcement agencies, and even Supreme Court Justices in Ohio regarding the open carrying of firearms, so perhaps the following information will help clarify Ohio’s law as it relates to citizens carrying firearms.

1. As a general matter of law, the right to bear arms is a fundamental, individual right guaranteed by Section 4, Article 1 of the Ohio Constitution.* This right, however, is not absolute, and is subject to regulation.

2. Beyond the rights granted by the Ohio Constitution, Revised Code § 9.68 provides that, unless otherwise prohibited by State or Federal law, any person “may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.” Specifically included in this statute is the right to openly carry a firearm. See Revised Code § 9.68(C)(1). There is no requirement that the person first get a license, get permission or show any need prior to openly carrying a firearm.

3. Officer safety must always be a paramount concern and goal for peace officers. However, officers should not consider openly carrying a firearm as per se suspicious or criminal conduct. Openly carrying a firearm does not automatically equate into a Disorderly Conduct (R.C. § 2917.11) or Inducing Panic (R.C. § 2817.31) charge. To take this position would be tantamount to taking a position that a person may not exercise their statutory or constitutional rights without risking constant “Terry stops” or police arrest. This position is obviously problematic. Instead, the officer or the dispatcher needs to look at the totality of the circumstances. Is there reasonable, articulable suspicion that criminal conduct is occurring? What are the facts and circumstances, beyond the mere presence of a firearm, that indicate it is reasonable to suspect criminal activity?

Simply reacting to every single “man with a gun” situation as an automatic “Terry stop” or felony stop will clearly have a chilling effect on the exercise of these rights by citizens, thus potentially opening the officer and the department up to civil liability. Officers and dispatchers should carefully question informants when being dispatched on these types of calls to verify what allegations of further suspicious or criminal conduct, if any, the suspect is engaged in. In a non-dispatch or informant situation, where the officer directly observes the conduct of the suspect, the officer should be ready to articulate what factors beyond the mere carrying of the firearm prompted the official police interaction with the suspect.

4. Nothing in Ohio’s concealed carry law requires a license holder to carry their firearm strictly concealed. Rather, Ohio’s concealed carry law is mostly a series of exceptions to the existing criminal statutes. For instance, see Revised Code § 2923.12(C)(2). The main statute, § 2923.12(A)(2), prohibits carrying a concealed handgun, and section (C)(2) simply states that the main statute does not apply to someone with a Concealed Handgun License. While some states do require strict concealment by their license holders, Ohio has not taken this approach. Further, there is nothing in Ohio’s concealed carry law that requires a license holder to forfeit their constitutional and statutory right to bear arms in order to obtain a Concealed Handgun License. Thus, a person who has been issued a Concealed Handgun License may still openly carry a firearm if they chose to do so, provided all other laws are observed.

5. Nothing in this article should be construed to mean that someone may openly carry a firearm where the person is otherwise prohibited from carrying a firearm. For instance, if the person is under firearm disability pursuant to Revised Code § 2923.13, the person may not openly carry a firearm, as the person cannot legally possess a firearm. Further, if the area where the open carry occurs in a prohibited area, such as a courthouse as provided for by Revised Code § 2923.123 or in a car as provided for by Revised Code § 2923.16, then the person may not openly carry the firearm.

There is still very much a need for education on the matter of open carry in Ohio, because there is still very much a need to open carry.

For instance, Ohio law restricts concealed handgun license (CHL)-holders from carrying concealed inside publicly-owned buildings (including, until SB184 takes effect on Sept. 9, highway rest stops). And although the law does NOT restrict open carry in these places, the signs that the state Attorney General's office provides for state facilities erroneously state that firearms are prohibited "anywhere on these premises", and do not differentiate between openly-carried and concealed firearms.

Until the Ohio legislature modifies the mandatory language on these signs, and as the following 2004 email from the office of the Ohio Attorney General notes, potential rest stop rape or robbery victims will be forced to make the choice between self-protection and the potential for false arrest:

"While it is legal for a person to carry a weapon openly some law enforcement agencies have said such actions may prompt an arrest for inducing panic, a misdemeanor.

It is impossible to say if any particular officer will cause problems for any particular person at any particular time, but carrying openly in a rest area – while within the bounds of law – may still result in difficulties.

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